Coughlin v. McGrath
| Decision Date | 28 October 1936 |
| Citation | 295 Mass. 499,4 N.E.2d 319 |
| Parties | COUGHLIN v. McGRATH et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from Superior Court, Berkshire County; Fosdick, Judge.
Suit in equity by James M. Coughlin against John McGrath and others. From an adverse decree, named defendant appeals, and brings exceptions to an order by the court.
Decree affirmed, and exceptions overruled.
F. M. Myers, of Pittsfield, for plaintiff.
H. L Harrington, of Adams, for defendants.
This is a suit in equity for a partnership accounting, and for injunctive relief against an alleged partner, the defendant John J. McGrath (hereinafter called the defendant), against several defendants who are alleged to have in their hands money owing to the defendant, and against the city of North Adams. The plaintiff alleges that the defendant, acting under a partnership agreement, had obtained a contract with the city of North Adams for the collection and disposal of garbage, and that he refused to account for the profits of the contract. The defendant denied that any partnership was entered into.
The case was sent to a master who found the following material facts: Some time in April, 1927, the board of health of the city of North Adams advertised for bidders who were willing to enter into a contract with that city for the collection of garbage for a term of five years, beginning on the first day of November, 1927. The plaintiff, one Frank De Falco, and the defendant, formed an oral partnership for the purpose of bidding for said contract; and, if awarded the same, for the purpose of fulfilling the terms thereof or doing and performing all things necessary thereto, of sharing the net profits of the venture equally, and of bearing the losses in equal shares or parts. The agreement of the parties was that the defendant would be the ostensible proprietor of the business, and that the plaintiff and De Falco as silent partners would assist in raising funds for the venture and would render such services as would be reasonably required. Some of the members of the board of health of North Adams knew that the plaintiff and De Falco were joining with McGrath in conducting the business required by the contract, and such knowledge convinced them that the work would be satisfactorily done, and influenced their vote in awarding the contract. McGrath obtained the contract, and the work under it was performed for five years from November 1, 1927. At the end of that five-year period, the contract was renewed in terms between McGrath and the city for an additional five-year period. On September 14, 1929, De Falco's interest was purchased, leaving the plaintiff and the defendant as the partners. Shortly before the securing of the renewal of the contract, the defendant promised the plaintiff an accounting, but soon thereafter he stated that he owed the plaintiff nothing, that the plaintiff had no writing. The plaintiff did not regard the statement of the defendant as a dissolution of the partnership by expressed will, but regarded it as a denial of legal responsibility. The master also found that from April or May, 1930, the value of the defendant's services to the partnership was $1,500, and that unless the defendant is barred from remuneration therefor by G.L.(Ter.Ed.) c. 108A, § 18(f) or by other rule of law, the plaintiff was entitled as his share of the profits to $5,586.78 plus interest amounting to $522.36; but that if the defendant is so barred the plaintiff's share is $6,336.78 with interest amounting to $592.49.
The master further found that no period of time was mentioned by the parties to the oral partnership agreement and that the specifications for the contract provided that ‘ the contractor or contractors further agree not to assign or sublet this contract, or any part thereof, directly or indirectly, nor allow any person or persons, other than themselves, their employees, or agents, to carry out the work contemplated under the terms of this agreement without first obtaining the written consent of the Board of Health; and the contractor or contractors shall be responsible for all work so sublet.’ He found also that no written consent was obtained from the board of health that the contract should be performed by the alleged partners.
At a hearing on the draft report on March 23, 1934, counsel for the plaintiff made suggestions regarding certain items of disbursement by the defendant prior to November 1, 1932, and agreed that they might be incorporated into the record provided they were sent to the master accompanied by vouchers. The master in his report stated that the statements in which the items appeared had been sent, but were not accompanied by the vouchers, and that no proof had been made. He therefore refused to consider the items. Objections of the defendant were apparently appended to the master's report.
After the filing of the master's report on June 9, 1934, the plaintiff on June 11, 1934, filed a motion to strike out the defendant's objections on the grounds that the objections were not brought into the master within the ten days allowed by Rule 90 of the Superior Court (1932), and that no notice was given to the plaintiff as required by Rule 21 of the Superior Court (1932). On September 14, 1935, the defendant's motion to recommit the report for the correction of alleged errors in the master's findings, filed on July 7, 1934, was denied by an interlocutory decree, which also struck the defendant's objections from the record and confirmed the master's report. The defendant excepted to his action of the trial judge.
On October 4, 1935, the defendant filed a motion to correct errors in the master's report, or to recommit the report for correction on the ground that the master failed to consider the list of additional disbursements which the parties had agreed to allow in. This motion was denied on November 5, 1935, and the plaintiff's motion for a final decree was allowed. By the final decree the plaintiff and the defendant were adjudged to be partners, and the defendant was adjudged to be indebted to the plaintiff on account of partnership business up to November 1, 1932, in the sum of $6,336.78, with interest amounting to $1,140.62, and costs of $134.30. The defendant appealed from the denial of his motion to recommit and from the final decree.
The defendant thereafter filed a motion in the Superior Court to order the clerk to include in the defendant's appeal as exhibits the vouchers for the above mentioned items of disbursement. This motion was denied, and from the denial of this motion the defendant prosecutes his substituted bill of exceptions. The documents printed in the defendant's appeal which are necessary to the bill of exceptions are to be incorporated in the bill of exceptions.
The defendant argues that his objections were improperly struck from the record inasmuch as they were appended to the report by the master. The plaintiff's motion to strike out was based on the failure of the defendant to file the objections within ten days of the settling of the draft report under Rule 90 of the Superior Court (1932), and upon his failure to give written notice under Rule 21 of the Superior Court (1932). The record does not disclose when the draft report was settled. The plaintiff's motion was supported by affidavit as to the facts which were not on the record. The motion was granted, and it does not appear from the record that error was committed. The defendant's argument that the fact that the master appended the objections to his report was conclusive on the question of compliance with Rule 90 has little merit. To admit such a power in the master is to vest in him the power to extend the time for the filing of objections, which power is vested only in the court.Rule 2 of the Superior Court (1932). Compare Nye v Whittemore, 193 Mass. 208, 209, 79 N.E. 253; Berenson v. H. G. Vogel Co., 253 Mass. 185, 187, 148 N.E. 450. The mere fact that the objections were appended to the report does not conclusively establish that they are properly here. ...
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